Karnataka High Court
Sriranga Abhishek @ Abhishek vs The State Of Karnataka on 13 February, 2024
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 313/2022 (C)
C/w
CRIMINAL APPEAL NO.1305/2019 (C)
CRIMINAL APPEAL NO.1307/2019 (C)
CRIMINAL APPEAL NO.1350/2019(C)
CRIMINAL APPEAL NO.593/2020 (A)
CRIMINAL APPEAL NO.1035/2020 (C)
CRL.A.NO.313/2022:
BETWEEN:
DILIP KUMAR
S/O RAJEGOWDA
AGED ABOUT 24 YEARS
R/AT OLD HOUSE NO.443
LAKSHMIKANTHA NAGAR
BEHIND EWS QUARTERS
Digitally signed HEBBALA, MYSORE - 570 016 ...APPELLANT
by PRABHU
KUMARA (BY SRI MOHAN KUMAR D, ADVOCATE)
NAIKA
Location: High
Court of AND:
Karnataka
STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 12.06.2019 PASSED BY THE LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
S.C.NO.744/2014 CONVICTING AND SENTENCING ACCUSED NO.5
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120B, 396,
397, 302, 201 OF IPC.
CRL.A.NO.1305/2019:
BETWEEN:
SRI AMITHKUMAR @ BUTTA
S/O DEVILAL SHARMA
AGED ABOUT 26 YEARS
R/AT HOUSE NO.91, SHARDADEVI NAGARA
RAILWAY LAYOUT, BHOGADI
MYSURU - 570 001 ...APPELLANT
(BY SRI MOHAN KUMAR D, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY THE
LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-57) IN S.C.NO.744/2014, CONVICTING AND SENTENCING
THE APPELLANT/ACCUSED NO.7 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
CRL.A.NO.1307/2019:
BETWEEN:
SRI SRIDHAR P S
S/O DEVARAJU
AGED ABOUT 31 YEARS
R/AT HOUSE NO.1104
4/10TH CROSS, E AND F BLOCK
RAMAKRISHNA NAGARA
MYSURU - 570 022 ...APPELLANT
(BY SRI SATYANARAYAN S CHALKE, ADVOCATE FOR
SRI BHARATH K, ADVOCATE)
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 12.06.2019 PASSED BY THE LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-57) IN S.C.NO.744/2014 CONVICTING THE
APPELLANT/ACCUSED NO.6 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
CRL.A.NO.1350/2019:
BETWEEN:
SRIRANGA ABHISHEK @ ABHISHEK
AGED ABOUT 30 YEARS
S/O JAGADISH
R/AT NO.5127, 8TH MAIN, 7TH CROSS,
2ND STAGE, VIJAYANAGAR
MYSORE - 570 017 ...APPELLANT
(BY SRI MAHESH S, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-57) IN S.C.NO.744/2014 CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 120B, 396, 397, 302 AND 201 OF IPC.
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
CRL.A.NO.593/2020:
BETWEEN:
SMT. SUSHEELA
W/O LATE K B UDAY RAJ SINGH
AGED ABOUT 61 YEARS
R/AT NO.224, 3RD A MAIN ROAD
OMBR LAYOUT, CHIKKA BANASWADI
BENGALURU - 560 043 ...APPELLANT
(BY SRI H.JAYANTH POOJARY, ADVOCATE FOR
SRI U S YOGESH KUMAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ADUGODI POLICE STATION
BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.11.2019
PASSED BY LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
AT BENGALURU (CCH-57) IN S.C.NO.744/2014 C/W
S.C.NO.772/2016 AND DIRECT THE SAID COURT TO RETURN MO.1
TO MO.4 TO THE APPELLANT HEREIN.
CRL.A.NO.1035/2020:
BETWEEN:
KIRAN
S/O BHIMANAIKA
AGED ABOUT 28 YEARS
R/AT ANGARAHALLI VILLAGE
DUDDA HOBLI, KAMMARAGHATT
MANDYA DISTRICT - 571 405 ...APPELLANT
(BY SRI MOHAN KUMAR D, ADVOCATE)
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NC: 2024:KHC:6188-DB
CRL.A No. 313/2022
C/w CRL.A No.1305/2019
CRL.A No.1307/2019
CRL.A No.1350/2019
CRL.A No.593/2020
CRL.A No.1035/2020
AND:
STATE OF KARNATAKA
BY ADUGODI POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX,
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VIJAYA KUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 12.06.2019 PASSED BY LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
S.C.NO.772/2016 CONVICTING THE APPELLANT/ACCUSED NO.3
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120B, 396,
397, 302, 201 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals arise out of the common judgment and
order passed by the LVI Additional City Civil and Sessions
Judge, Bengaluru (CCH-57) in SC No.744/2014 and SC
No.772/2016 against accused No.1 & 3 to 7. Accused Nos.1
and 4 to 7 were tried in SC No.744/2014 and accused No.3
was tried in SC No.772/2016 on the basis of the charge sheet
filed by Adugodi police in Crime No.103/2014 of their Police
Station for the offences punishable under Sections, 120B,
396, 397, 302, 201 IPC.
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2. Crime No.103/2014 of Adugodi police station was
registered on the basis of the complaint filed by Susheela,
W/o Udaya Raj Singh who was examined as PW.1 in SC
No.744/2014. Initially the case was committed against all the
accused i.e., accused Nos.1 to 7 to the Sessions Court which
was registered in S.C.No.744/2014. Accused Nos.2 and 3
absconded. Therefore case against them was split up. Case
against accused No.2 was registered in S.C No.1018/2017
and case against accused No.3 was registered in
S.C.No.772/2016. For the purpose of convenience, the
parties are referred to according to their ranks before the
trial Court.
3. On trial, the trial Court by the impugned
judgment and order convicted accused Nos.1, 3 to 7 for the
charges for the offences punishable under Sections 120B,
396, 397, 302, 201 IPC and sentenced them to various terms
of imprisonment and fine as per the table below:
Sl. Convicted Sentence Fine Default
No. for Offences amount in sentence
U/s Rs.
1 120B IPC RI of 6 months 5,000/- SI of 2 months
2 396 IPC RI of 10 years 10,000/- SI of 1 year
3 397 IPC RI of 3 years 5,000/- SI of 3 months
4 302 IPC Life Imprisonment 1,00,000/- SI of 3 years
5 201 IPC SI of 1 year 5,000/- SI of 2 months
NC: 2024:KHC:6188-DB
4. The trial Court directed to release MOs.1 to 4 to
PW.1/complainant after the appeal period. She filed
application before the trial Court for release of custody of
those properties. The trial Court by the order dated
02.11.2019 rejected the said application on the ground that
the matter is pending before this Court in
Crl.A.No.1350/2019. Challenging that order
complainant/PW.1 has preferred Crl.A.No.593/2020. The
particulars of the appeal numbers and appellants in the
above cases are set out in the table below:
Sl. Criminal Sessions Appeal
No. Appeal Case No. preferred by
No.
1 1350/2019 744/2014 A1
2 1035/2020 772/2016 A3
3 313/2022 744/2014 A5
4 1307/2019 744/2014 A6
5 1305/2019 744/2014 A7
6 593/2020 744/2014 & PW.1/complainant
Since the evidence in S.C.No.744/2014 is more
comprehensive, exhibits and the witnesses are referred to
henceforth as stated in S.C.No.744/2014.
NC: 2024:KHC:6188-DB
5. The trial Court though in the judgment says that
it recorded common evidence, the records show that accused
No.2 was secured after examination of PWs.1 to 5 in
S.C.No.744/2014. PWs.1 to 5 and 39 in S.C.No.744/2014
were not examined in S.C.No.772/2016. For the purpose of
clarity, comparative chart of the witnesses and exhibits are
extracted below:
Annexure-A
Witnesses Comparison
Sl.
N S.C No. 744/2014 S.C.No.772/2016
o.
1 PW.1- Smt. Susheela
2 PW.2- Smt. Lakshmamma
3 PW.3- Smt. Sudha Mohan
4 PW.4- Rajendar Singh B.R
5 PW.5- Anantha Simha
6 PW.6- Iliyaz Khan PW.1- Iliyaz Khan
7 PW.7- Naveen Kumar PW.2- Naveen Kumar
8 PW.8- Sharavan Kumar PW.3- Sharavan Kumar
9 PW.9- Bharath PW.4- Bharath
10 PW.10- Satheesh PW.5- Satheesh
11 PW.11- Umadevi PW.6- Umadevi
12 PW.12- Prasad PW.7- Prasad
13 PW.13- Narayanswamy PW.8- Narayanswamy
14 PW.14- B.H. Singh PW.9- B.H. Singh
15 PW.15- Vijetha Singh PW.10- Vijetha Singh
16 PW.16- Deepu PW.11- Deepu
17 PW.17- Irfan Pasha PW.12- Irfan Pasha
18 PW.18- Ramdas PW.13- Ramdas
19 PW.19- Dr. Ramesh PW.14- Dr. Ramesh
20 PW.20- C.S. Nagalakshamma PW.15- C.S. Nagalakshamma
21 PW.21- Manjunath Singh PW.16- Manjunath Singh
22 PW.22- Sukumar Singh PW.17- Sukumar Singh
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23 PW.23- G. Somashekaraiah PW.18- G. Somashekaraiah
24 PW.24- Nanjunda Swamy PW.19- Nanjunda Swamy
25 PW.25- Dr. Arif PW.20- Dr. Arif
26 PW.26- Dr. Mohan PW.21- Dr. Mohan
27 PW.27- Prem Singh PW.22- Prem Singh
28 PW.28- K.G Kumar PW.23- K.G Kumar
29 PW.29- G. Raveendra Kumar PW.24- G. Raveendra Kumar
30 PW.30- Sharanappa PW.25- Sharanappa
31 PW.31- K. Anandh PW.26- K. Anandh
32 PW.32- Purushotham PW.27- Purushotham
33 PW.33- Manjunath PW.28- Manjunath
34 PW.34- S.N Subhash Chandra PW.29- S.N Subhash Chandra
35 PW.35- Basavaraj.S Hadapad PW.30- Basavaraj.S Hadapad
36 PW.36- Somashekar PW.31- Somashekar
37 PW.37- Manoj Kumar PW.32- Manoj Kumar
38 PW.38- Sudheer. S PW.33- Sudheer. S
39 PW.39- Dr. Chandrashekar
Exhibits Comparison
Sl.
S.C No. 744/2014 S.C.No.772/2016
No.
1 Ex.P.1- Statement of PW.1
2 Exs.P2 to 5- Photographs
3 Ex.P6- Statement of PW.2
4 Ex.P7- Statement of PW.3
5 Ex.P8- Spot Mahazar
6 Ex.P9- Statement of PW.5
7 Ex.P10- Mahazar Ex.P1
8 Ex.P11- Statement of PW.6 Ex.P2
9 Ex.P12- Statement of PW.7 Ex.P3
10 Ex.P13- Mahazar Ex.P4
11 Ex.P14- Statement of PW.8 Ex.P5
12 Ex.P15- Statement of PW.9 Ex.P6
13 Ex.P16- Statement of PW.10 Ex.P7
14 Ex.P17- Mahazar Ex.P8
15 Ex.P18- Spot Mahazar Ex.P9
16 Ex.P19- Spot Mahazar Ex.P10
17 Ex.P20- Statement of PW.12 Ex.P11
18 Ex.P21- Statement of PW.13 Ex.P12
19 Ex.P22- Mahazar Ex.P13
20 Ex.P23- Statement of PW.16 Ex.P14
21 Ex.P24- Mahazar Ex.P15
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22 Ex.P25- Statement of PW.8 Ex.P16
23 Ex.P26- P.M Report Ex.P17
24 Ex.P27- Wound Certificate Ex.P18
25 Ex.P28- Inquest Mahazar Ex.P19
26 Ex.P29- Report Ex.P20
27 Ex.P30- Wound Certificate Ex.P21
28 Ex.P31- Spot sketch Ex.P22
29 Ex.P32- letter to the police Inspector of Ex.P23
Adugodi Police Station
30 Ex.P33- FIR Ex.P24
31 Ex.P34- License Certificate
32 Ex.P35- Registration Certificate of
Edelweiss Company
33 Ex.P36- Edelweiss Company 10
Agreement and 2 visiting cards
34 Ex.P37- Edelweiss Company Rental
Agreement.
35 Ex.P38- Five rent copies
36 Ex.P39- Instruction slip Book and
Demand Details Book
37 Ex.P40- Report of PW.36 Ex.P25
38 Ex.P41- Report of PW.57 Ex.P26
39 Ex.P42-P.F.34/2014 dated 25.03.2014 Ex.P27
40 Ex.P43- Statement of A-2 Ex.P28
41 Ex.P44- Statement of A-3 Ex.P29
42 Ex.P45- Mahazar
43 Ex.P46- FSL Report
44 Ex.P47- Sample Seal
6. The case of the prosecution in brief is as follows:
PW.1 Susheela and her husband Udaya Raj Singh had
inherited M.O.1 antique diamond necklace worth about 18
crores and M.O.2 another diamond stone. After the
retirement of Udaya Raj Singh they were residing in Wilson
Garden area. PW.1 and Udaya Raj Singh intended to sell
M.Os.1 and 2 and out of the proceeds of the same they
intended to construct orphanage/community centre.
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Therefore, they were negotiating for sale with several
persons. Accused Nos.1 and 2 had incurred huge loss in
their business which they were running in Mysore. To
overcome their financial distress they decided to make
money by any means. They came to know about PW.1 and
Udaya Raj Singh possessing valuable antique jewellery.
Accused Nos.1 and 2 conspired with other accused to rob the
same from them. To gain the confidence of the couple,
Accused Nos.1 and 2 got themselves introduced to Udaya Raj
Singh and represented that they will arrange for the sale of
M.O.1 for a handsome price. In the guise of such business
and in execution of such conspiracy to commit robbery
accused Nos.1 and 2 on 25.03.2014 at 11.00 a.m. went to
the house of Udaya Raj Singh in the cars belonging to
accused Nos.1 and 2 viz., KA-09 MA 1351 and KA 09 MA
2147. They represented to Udaya Raj Singh that they are
bringing customers at 2.00 p.m. and he should secure the
necklace. Accordingly at 2.00 p.m. accused Nos.1 to 7 came
to the house of Udaya Raj Singh. Accused No.7 stood
outside keeping a watch. Accused Nos. 1 to 6 entered into
the house. On Udaya Raj Singh showing them the photo of
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M.O.1, accused asked him to get M.O.1. On the instructions
of Udaya Raj Singh PW.1 brought and handed over the same
to him. Accused Nos.1 to 4 made the show of examining
MO.1. At that time on the signal of accused No.2 accused
No.4 grappled Udaya Raj Singh and the other accused also
gripped him. Accused No.2 stabbed Udaya Raj Singh with
knife. Accused Nos.3, 5 and 4 also again stabbed him with
knives. When accused No.4 was gripping victim Udaya Raj
Singh, bit the finger of accused No.4. After assaulting Udaya
Raj Singh, the accused robbed M.O.Nos.1 and 2. On seeing
the incident PW.1 raised alarm. Accused No.6 dragged her to
the room. Accused No.3 assaulted on her neck with a surgical
blade. When she fell down due to bleeding injuries, accused
robbed her Mangalya chain. When the pet dogs of the victim
started barking and people started gathering, all the accused
climbed the building, concealed the weapons under the flower
vase and ran away. When the accused were running away
from the spot, PW.1 came out and raised alarm, the people
gathered and chased the accused. Even patrol duty Police
joined them and apprehended accused Nos.2, 4 and 5.
Accused Nos.1, 3, 6 and 7 escaped. In the process of
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escaping mangalya chain of PW.1 was lost. PW.2/the
neighbour and other people admitted PW.1 to Agadi Hospital.
On receiving information PW.38 visited Agadi Hospital and
recorded the statement of PW.1 as per Ex.P1 in the presence
of the doctor PW.25. He sent the statement through PW.34
to the Police Station for registration of the FIR. Accordingly
PW.34 registered the FIR in Crime No.103/2014 as per
Ex.P33. PW.38 took up the investigation. PW.32
apprehended accused Nos.6 and 7. PW.33 apprehended
accused Nos.1 and 3. PW.36 conducted mahazars Exs.P17
to 19 on the basis of the voluntary statements of accused
Nos.1 to 3. PW.38 conducted inquest on the dead body of
the victim, got subjected the same to Post mortem
examination, recorded the statements of the witnesses,
seized the robbed articles, weapons and cars used in the
commission of the offence and sent the seized articles for FSL
examination. On completing the investigation filed the charge
sheet against the accused.
7. As already noted, since accused No.2 could not
be secured, he was not tried in the above cases. The trial
Court on holding the trial convicted accused Nos.1, 3 to 7
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and sentenced them for the offences punishable under
Sections 120B, 396, 397, 302 and 201 of IPC. It is
submitted that accused No.4 has not preferred any appeal
against the order of conviction and sentence. The other
accused and the complainant have preferred the above
appeals.
Submissions of Sri Mahesh.S, Sri Mohan Kumar.D,
Sri Satyanarayan S.Chalke for accused Nos.1, 3, 5, 7 & 6:
8(i) PW.1 was the only eye witness to the incident.
Once she says that soon after she was stabbed she lost
conscious. Therefore, she coming out and raising alarm and
public and Police chasing accused Nos.2, 4 and 5
apprehending at the spot is doubtful.
ii) As per her statement, except accused Nos.1 and
2 accused Nos.3 to 7 were strangers to her. For their
identification, the Investigating Officer did not conduct any
Test Identification Parade. Therefore, the identity of accused
Nos.3 to 7 was not established.
iii) Except PW.1 and Police/official witnesses the
other witnesses did not support the prosecution case.
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iv) According to the prosecution the genesis of the
crime is PW.1 and her husband owning antique diamond
necklace. The prosecution was required to prove that they
had acquired the said necklace. The appraiser of MOs.1 and
2 was not examined. The ancestors of PW.1 and Udaya Raj
Singh were not examined to show that PW.1 and Udaya Raj
Singh acquired that from their ancestors and that was their
valuable antique property. Therefore, the trial court should
not have accepted the evidence of PW.1 that the antique
necklace was worth Rs.18 crores.
v) PW.1 had not given any features of the accused.
The Police Officers have not stated on what basis they
apprehended them in the absence of their names and
particulars. The scribe of Ex.P1 was not examined. PW.25
who allegedly certified the fitness of PW.1 to give statement
Ex.P1 was not eligible to give such certificate as he was not
qualified medical practitioner. Only on last page of Ex.P1 the
signature of PW.1 was taken. That shows that other pages
were subsequently manipulated. Therefore, Ex.P1 is
shrouded with suspicion.
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vi) The incident allegedly took place on 25.03.2014
at 2.30 p.m. No medical records were produced to show that
at what time PW.1 and Udaya Raj Singh were admitted into
Agadi Hospital. Her statement was allegedly recorded at
6.p.m. Why her statement was not recorded between 2.30
p.m. and 6 pm was not explained. There is delay in
delivering the FIR to the Court. That fact also creates doubt
about the genuineness of Ex.P1 and leads to the inference
that subsequently the Police Officers and others have
concocted Ex.P1 to suit their convenience.
vii) Even accused No.1 was stranger to PW.1, she
had not met him earlier. Therefore identification of accused
No.1 is also doubtful. There were CCTV cameras in the area
where the crime took place. But those CCTV footages were
not collected by the Investigating Officer. The mobile
numbers and the CDRs of the accused were not collected to
prove the conspiracy or the movement of the accused in the
area where the offence took place.
viii) According to the prosecution itself accused No.7
had kept watch standing outside and he did not cause any
injury to PW.1 or the deceased. The evidence of PW.1 shows
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that several persons had contacted them for purchasing
M.Os.1 and 2. Therefore, somebody might have committed
the offence. When the Police were unable to find the real
culprits they have falsely implicated accused Nos.1 to 7.
ix) As per PW.1 they had kept 6 to 7 dogs in their
house. If that be so, the said dogs could not have let
anybody to assault PW.1 and the deceased. Accused Nos.1
and 3 were allegedly arrested in Bellavi, Tumkur District and
accused Nos.6 and 7 were allegedly arrested in Mysore on
28.03.2014. Till then PW.1 had not given their names or any
of their identity particulars. How the Police Officers figured
them as the culprits in the case was not explained. Even the
apprehension of accused Nos.2, 4 and 5 was tainted.
x) None of the recovery witnesses to the seizure of
weapons of the offence, bloodstained clothes of the accused
and other incriminating materials supported the prosecution
version. Therefore, the said circumstances were not proved.
The trial Court overlooking the fact that recoveries were not
proved beyond reasonable doubt convicted the accused solely
based on the evidence of PW.1 and the Police witnesses
which were shrouded with so many suspicions. Therefore, the
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impugned order of conviction and sentence are liable to be
set aside.
9. In support of their submissions, they relied on the
following judgments:
i) Kamal vs. State of NCT of Delhi1
ii) Budhsen vs. State of UP2
Submissions of Sri H.Jayanth Poojary, learned counsel for
the complainant /appellant in Crl.A.No.593/2020:
10. As per the prosecution itself MOs.1 and 2
belonged to PW.1 and her husband Udaya Raj Singh. Udaya
Raj Singh is no more. There were no rival claimants to claim
M.Os. 1 to 4. The trial Court in its final judgment ordered for
release of those properties without any condition. What
remained was only the ministerial act of release of the
properties. Therefore, the trial Court was not justified in
imposing condition of furnishing surety of 18 crores at the
interim stage and rejecting the application of PW.1 which was
filed subsequent to the conviction judgment only on the
ground that appeals are pending. Even in the split up case
against accused No.3 the trial is concluded. Therefore, the
[2023 Livelaw (SC) 617]
AIR 1970 SC 1321
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properties were not required for identification. Thus the
order of the trial court is unsustainable and the properties
MOs.1 to 4 be released to PW.1
Submissions of Sri Vijayakumar Majage, learned SPP- II for
the State:
11. PW.1 is the injured eye witness. In her complaint
Ex.P1 she has stated that M.O.1 was valuable antique
property, that was also once stolen and traced by the Police.
She has named accused Nos.1 and 2 as the persons known
to her and her husband. She has also spoken about accused
Nos.1 and 2 along with other accused approaching on the
date of incident and clearly stated about the overtacts of the
accused. There was no reason to disbelieve her. Her
evidence was further corroborated by the evidence of PW.3-
Sudha regarding PW.1 revealing the incident to her and
suffering the injuries. Her evidence was further corroborated
by the evidence of PW.25/doctor who certified about her
fitness. If he was not eligible to practice English medicine, it
was for the concerned authorities to take action against him,
that itself does not falsify his evidence regarding fitness of
PW.1 to give statement. The evidence of PW.1 was further
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corroborated by the evidence of PW.34 who carried her
statement to the Police Station and registered FIR. The delay
in delivering the FIR was explained by him. PW.26 another
doctor who treated PW.1 issued wound certificate. Ex.P30
also speaks about her condition to give statement. Accused
Nos.2, 4 and 5 were apprehended by the Police and the
Public on chasing them. Soon after the incident, M.O.1 was
recovered from the custody of accused No.4. That supports
the case of the prosecution that on robbing the items they
were running away and they were caught.
12. PW.9 partly supported regarding the arrest of
accused Nos.2, 4 and 5. PWs.23 and 24 head constables
spoke about the arrest of accused Nos.2, 4 and 5. Since
their evidence was recorded after three years of incident,
some minor inconsistencies are bound to occur. That did not
demolish the case of the prosecution. Their evidence was
corroborated by the evidence of PW.9. Since the injured eye
witness supported the prosecution, the witnesses to the
mahazar regarding seizure of the properties was not fatal to
the case of the prosecution. PW.1 the victim identified the
accused before the Court. Since no Test Identification Parade
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was conducted the judgments relied on by the defence
counsel are not applicable. The evidence of PW.1 shows that
she had seen the accused for sufficiently long time. So the
identification by her before the Court is natural. There is
nothing to show that at the scene of offence, CCTVs were
installed. Therefore, the contention that CCTV footages
should have been collected has no merit. PW.1's evidence
that they used to keep M.O.1 in the bank and only when the
customers demanded, they used to bring them from the bank
and show them, was not disputed. Therefore, for the first
time it is not open to the accused to claim that MOs.1 and 2
are not valuable ornaments. FSL report/Ex.P46 shows that
the clothes of the accused and deceased were stained with
'O' group blood, which connect the accused to the crime.
Accused No.4 who has suffered the order of conviction and
sentence based on the same evidence has not challenged
that order. That has become final, therefore, there are no
grounds to reverse the order against him. There are no
reasons to reverse the judgment and order against the
appellants which is based on the same set of evidence.
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13. On careful consideration of the submissions of
both side the points that arise for determination are:
i) Whether the impugned judgment and order of
conviction and sentence passed against accused
Nos.1, 3, 5 to 7 is sustainable ?
ii) Whether the trial Court was justified in rejecting
the application of complainant/PW.1 for release of
M.Os.1 to 4 ?
Analysis
Reg. Point No.1
14. According to the prosecution, PW.1 and her
husband had acquired M.Os.1 and 2 the valuable antique
jewellery from their ancestors and they intended to sell the
same for establishing Orphanage/community centre. It is
further case that accused Nos.1 and 2 were drained into
financial stress due to loss of their business, therefore they
were finding out ways to get money by any means. On
learning about PW.1 and her husband trying to sell M.Os.1
and 2, accused Nos.1 and 2 conspired with other accused to
rob the said jewellery. It is the further case of the
prosecution that in execution of such conspiracy on
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25.03.2014 at 2.00 p.m. accused Nos.1 to 6 entered into the
house of PW.1 robbed M.Os.1 to 4, when Udaya Raj Singh
protested they committed his murder by stabbing him. When
PW.1 raised alarm they stabbed her also on her neck and
robbed her mangalya chain.
15. The case of the prosecution was based on:
(i) The evidence of PW.1/the injured eye witness;
(ii) The circumstance of motive;
(iii) Recovery of robbed articles, weapons of offence
and blood stained clothes of the accused at their
instance;
(iv) Evidence of official witnesses and other
witnesses.
16. So far as the motive, during trial the accused did
not dispute that M.Os.1 and 2 were the valuable jewelleries.
As against that accused No.2 in the cross examination of
PW.1 himself suggested that PW.1 had informed many
persons about they possessing diamond necklace and they
had tried to sell that about 2 years prior to the incident. It is
also suggested that several people used to visit their house
for purchasing the said diamond necklace and one of such
purchasers had offered Rs.12,50,000/- for the said jewellery.
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It is also suggested that they declined that proposal
demanding higher amount. Accused No.4 has suggested to
PW.1 that the said necklace was once stolen in the year 2006
and a case was registered in Wilson Garden Police Station.
Accused No.4 had suggested to PW.1 that her mother-in-law
had given the said jewellery to her saying that it is an
ancestral property inherited from their ancestors. Her
evidence that their family was a royal family was not denied.
As against that an attempt was made by accused No.4 to
suggest PW.1 that jewellery belonged to Devika Rani of
Tataguni Estate and that was siphoned by her husband.
Similarly accused No.4 suggested to PW.1 that several
persons from Hyderabad, Mumbai and Jaipur visited the
house of PW.1 since four months prior to the incident for
purchasing the said jewellery. It is also suggested to her
that they used to entertain the intending purchasers only on
verifying their affordability to purchase the same. Having
regard to such evidence, we do not find any merit in the
contention that M.O.1 was not valuable jewellery and thus
the motive circumstance was not proved.
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17. It is no doubt true that none of the witnesses to
the recoveries of incriminating materials like weapons of the
offence, clothes of the accused etc supported the prosecution
version. Whether that itself falsifies the prosecution case is
the question. The case is based not only on the
circumstantial evidence, but also depends on the evidence of
injured eye witness PW.1.
18. How the evidence of the injured eyewitnesses
shall be appreciated was expounded by the Hon'ble Supreme
Court in Bakshish Singh v. State of Punjab3 and in Lakshman
Singh v. State of Bihar (now Jharkhand)4.
19. In the judgment in Bakshish Singh's case
referred to supra it was held that if evidence of sole
eyewitness of assault found within the zone of credibility,
minor inconsistencies/contradictions/embellishments shall be
ignored. In para 25 of the said judgment, it was held that
such inconsistencies, discrepancies etc often happen when
such eye witness witnessed a brutal murder in gibberish
(2013) 12 SCC 187
(2021) 9 SCC 191.
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manner. Therefore, testimony of such witness is not liable to
be rejected on that ground alone.
20. In para 9.2 of the judgment in Lakshman Singh's
case referred to supra the Hon'ble Supreme Court dealing
with the manner of appreciation of the evidence of the
eyewitnesses referring to its several earlier judgments held
as follows:
9.2 The aforesaid principle of law has been
reiterated again by this Court in Ramvilas and it is
held that evidence of injured witnesses is entitled to a
great weight and very cogent and convincing grounds
are required to discard their evidence. It is further
observed that being injured witnesses, their presence
at the time and place of occurrence cannot be
doubted.
(Emphasis supplied)
21. Reading of the above judgment clearly shows that
the evidence of injured eyewitness has greater evidentiary
value. Unless there exist compelling reasons, the statements
of such witnesses cannot be discarded.
22. The Court has to examine credibility of the
evidence of PW.1 in the light of the aforesaid principles laid
down by the Hon'ble Supreme Court. The accused also did not
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dispute that the husband of PW.1 died homicidal death in her
house and she also suffered injuries. To examine what kind of
horror was suffered by them, it is necessary to examine the
medical evidence.
23. PW.19 the doctor deposed about conducting
postmortem examination on Udaya Raj Singh and issuing
postmortem report as per Ex.P26. As per his evidence, Udaya
Raj Singh had suffered the following external injuries
1. Abrasion measuring 0.5 x 0.5 cms present 1
cms below the left eye.
2. Three abrasions of varying sizes ranging from
0.5 cms x 0.5 cms to 2 cms x 0.5 cms
present over the nose.
3. Four abrasions measuring 1 x 0.5 cms
present over the left cheek.
4. Abrasion measuring 2 x 0.5 cms present over
the left angle of the mouth.
5. Cut throat wound measuring 8 cms x 1.5 cms
x muscle deep present over front of the
upper part of the neck, involving both right
and left sides, more towards the right side of
the neck. The wound is situated 6 cms below
the chin, 5 cms below the right ear lobule
and 8 cms below the left ear lobule exposing
the cut underlying muscles. Margins are clean
cut. On dissection of the neck, contusion of
the strap muscles of the neck present. The
right common carotid and right internal
jugular vein, nerves of the right side of neck
and severed. The right lamina and right
superior horn of the thyroid cartilage are cut.
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6. Incised wound measuring 6 x 0.5 cms x
muscle deep present over the right side of
the neck, 1.5 cms from the injury No:5,
Margins are clean cut.
7. Incised wound measuring 1 cms x 0.5 cms X
subcutaneous tissue deep present on the left
side upper part of neck, 1 cms above injury
No: 5 and 4 cms below the chin. Margins are
clean cut.
8. Incised wound measuring 2 cms x 1 cms X
subcutaneous tissue deep present on the left
side upper part of neck, 1 cms above injury
no:5 and 2 cms below the injury no.7.
Margins are clean cut.
9. One punctured wound measuring 1 cm x 0.5
cm x muscle deep present on the right side of
the cheek, 1 cms from injury No:5, Margins
are clean cut.
10. Incised wound measuring 2 cm x 0.5 cm x
subcutaneous tissue deep present on the
right side of the neck, 2 cms above injury
no:5, Margins are clean cut.
11. Incised wound measuring 2 cms x 0.5 cm x
subcutaneous tissue deep present on the
front of the neck, 4 cms below injury no:5,
Margins are clean cut.
12. Oblique Incised wound measuring 15 cms x 1
cm x muscle deep present over the left side
of upper part of chest with tailing of the
wound towards the midline of the chest.
Margins are clean cut.
He deposed that the above injuries were ante mortem in
nature and the death was due to shock and hemorrhage as a
result of cut throat injury sustained. In his cross-examination,
nothing worth was elicited to disbelieve the evidence
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regarding the nature of injuries or cause of death. The above
injuries show that the victim Udaya Raj Singh was assaulted
in very barbaric manner.
24. To find out whether PW.1 was the victim to the
incident, her evidence is also required to be narrated. She
categorically deposed that on the date of incident, accused
Nos.1 and 2 had come to her house saying that they have
customers for purchasing MO.1, they will secure them in the
afternoon and requested to get MO.1 for their inspection. She
further deposed that at 2.00 p.m. accused Nos.1 and 2
accompanied by 4 others came and asked production of MO.1
for their inspection. When Udaya Raj Singh was showing that
to the accused, they grappled him and stabbed him with knife
and slit his neck etc. She also deposed that when she raised
alarm, one tall person amongst them dragged her into the
room, stabbed her with knife on neck and another accused
came and pushed her to the ground and then all of them ran
away. She further deposed that she was taken to Agadi
Hospital by neighbours and other public and she was treated
there. Her evidence regarding she being shifted to Agadi
Hospital was corroborated by the evidence of PW.3/her
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neighbour. Though PW.3 turned hostile to certain other
aspects, she deposed that on learning about murder of Udaya
Raj Singh on TV news, she went to the house to see the dead
body and came to know that by that time, PW.1 was admitted
into the Agadi hospital.
25. PW.26 Consulting Doctor of Agadi Hospital
deposed that on 25.03.2014 at 4.00 p.m. PW.1 was admitted
into their hospital with history of assault, he examined her
and issued wound certificate as per Ex.P30. As per his
evidence and Ex.P30, PW.1 had suffered the following
injuries:
1. Incised wound present over the front of the
left side of the neck measuring 3 cm x 1 cm x
0.3 cm. Bleeding present at the site of the
wound. The margins are clear cut.
2. Incised wound present over the front of the
right side of the neck measuring 1 cm x 1 cm
x 0.2 cm. Bleeding present at the site of the
wound. The margins are clear cut.
The above evidence goes to show that the victim had suffered
incised cut injuries on her vital part namely neck. Those
injuries correspond to the narration of PW.1 regarding assault
on her. In the cross-examination of PW.26, except the
suggestion that he was only the Consulting Doctor and not
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employee of the said hospital, nothing worth was elicited to
impeach his evidence regarding examination of PW.1 or the
injuries found on her. The evidence goes to show that PW.1
had witnessed disastrous situation of her husband being
slayed inhumanely in front of her eyes in a barbaric manner.
She also suffered injuries. The scene of offence was the house
of PW.1 and her husband where they ordinarily resided.
Under such circumstances, the presence of herself and her
husband at the scene of offence was probable and natural.
Her evidence shows that she knew accused Nos.1 and 2
earlier to the incident, they had visited her house twice or
thrice and they were not strangers to her. Therefore she
identifying accused Nos.1 and 2 was quite natural. In addition
to that, in Ex.P1 which was recorded soon after the incident
the names of accused Nos.1 and 2 appeared as assailants. It
is no doubt true that other accused were not named or their
physical features or approximate age, clothes worn by them
or any specific identification marks were not given. But so far
as accused Nos.1 and 2, her evidence was consistent and
acceptable.
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26. Having regard to the fact of death of her husband
in front of her eyes, nature of the injuries suffered by her,
there would be no reason for her to shield if true assailants
were somebody else and to falsely implicate accused Nos.1
and 2. Therefore the contention raised by learned Counsel for
accused No.1 that accused No.1 was falsely implicated by her
and her evidence with regard to identification of accused
Nos.1 and 2 cannot be countenanced.
27. Similarly the judgments of the Hon'ble Supreme
Court relied on by the learned Counsel for the accused
regarding conduct of Test Identification Parade etc are not
applicable so far as accused Nos.1 and 2 are concerned.
28. So far as other accused, it is true that they were
not known to PW.1 prior to the incident. Even according to
the prosecution, accused No.7 had not entered the house and
had not assaulted either PW.1 or her husband. PW.1 in her
chief examination itself states that after her discharge from
the hospital on 28.03.2014 at 4.45 p.m. to 5.00 p.m. she
went to the police station and the police showed her seven
persons and she identified them. Her evidence identifying
accused No.7 is not acceptable. Since according to the
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prosecution itself, he had not entered the house at all. She
did not say on what basis she identified the other accused.
She did not identify them with reference to the physical
features, clothes worn by them or any specific identification
marks like any scar etc. Therefore the evidence of PW.1 with
regard to identification of accused Nos.3 to 7 was not
satisfactory. Despite they being strangers to PW.1, the
Investigating Officer did not conduct any Test Identification
Parade for their identification. Her evidence shows that
because the police arrested all of them, she found them to be
culprits.
29. So far as accused No.4 he was implicated in the
case not only on the basis of his identification, but on the
basis of recovery of MOs.1 and 2 from his possession on his
voluntary statement. Therefore he stands on different footing
than accused Nos.3 and 5 to 7, more over he has not
preferred any appeal. Therefore we do not find it necessary to
make any further comment about him. Once identification of
accused Nos.3 and 5 to 7 was not found helpful, they are
entitled to benefit of that doubt. Since the identification of
accused Nos.3, 5 to 7 is not found trust worthy and as no
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Test Identification Parade was conducted, the judgments
relied on by learned Counsel for the accused in that regard
need no further reference.
30. As already pointed out, except the evidence of
PW.1 the injured eyewitness other circumstances were not
proved against appellants'/accused as the witnesses to those
recoveries of incriminating materials did not support. So far
as accused No.1, there is no reason to disbelieve the evidence
of PW.1 about his overt acts. Therefore we do not find any
ground to interfere with the impugned judgment so far as
accused No.1 is concerned.
31. So far as other accused/appellants, the trial Court
despite holding that other circumstances were not proved,
simply went on reproducing the evidence of the witnesses
more particularly the official witnesses to hold that there was
no reason to disbelieve them. It is settled principle of law that
to convict a person of any criminal charge, there should be
evidence beyond reasonable doubt. Suspicion however strong
may be cannot take the place of proof. Therefore the
impugned judgment and the order of the trial Court with
regard to accused Nos.3, 5 to 7 is liable to be set aside.
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Reg. Point No.2.
32. PW.1 has preferred Crl.A.No.593/2020 against
rejection of her application for return of the property on the
ground of pendency of the appeals. It is material to note that
the trial Court itself had granted interim custody of properties
MOs.1 to 4 to PW.1 satisfying that she is entitled to the same,
however, imposing onerous condition of furnishing surety of
Rs.18 crores.
33. So far as the ground of pendency of appeals as
now the appeals are being disposed of, that ground does not
survive. Though the case against accused No.2 is still
pending, as submitted, the trial in that case is also over.
Therefore the said property is not required for identification.
The Hon'ble Supreme Court in Sunderbhai Ambalal Desai v.
State of Gujarat5 has explained the principle of disposal of
the properties in criminal cases. It is held that in such cases
photographs of the property shall be taken and properties
shall be returned to the eligible person on retaining the
photographs. While granting interim custody of the property,
the trial Court was not justified in imposing such onerous
2022 AIR SCW 5301
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condition. PW.1 had already lost her husband. At the time of
the incident, both PW.1 and her husband were retired. Having
suffered such tragedy, it would be travesty to impose such
onerous condition to the person who had suffered injustice.
Therefore her appeal deserves to be allowed. Hence the
following:
ORDER
Crl.A.No.1350/2019 filed by accused No.1 is hereby
dismissed.
Crl.A.Nos.1035/2020, 313/2022, 1307/2019,
1305/2019 & 593/2020 are hereby allowed.
The impugned judgment and order of conviction and
sentence of accused No.1 in S.C.No.744/2014 passed by the
trial Court is hereby confirmed.
The impugned judgment and order of conviction and
sentence passed by the trial Court against accused Nos.5, 6
and 7 in S.C.No.744/2014 and accused No.3 in
S.C.No.772/2016 are hereby set aside.
Accused Nos.3, 5 to 7 are hereby acquitted of the
charges for the offences punishable under Sections 120B,
302, 396, 397, 201 of IPC.
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Bail bond of accused No.7 and his sureties shall stand
discharged.
Accused Nos.3, 5 and 6 shall be set at liberty forthwith
if their detention is not required in any other case.
The impugned order of the trial Court with regard to
rejection of the application of PW.1 under Section 452 of
Cr.P.C. is hereby set aside.
The trial Court shall release MOs.1 to 4 to PW.1
forthwith retaining photographs of the said properties with
condition that she shall produce them before the trial Court if
required in split up case in S.C.No.1018/2017.
The order of the trial Court with regard to disposal of
other properties and compensation to the victim under
Section 357(1) of Cr.P.C. are maintained.
Communicate copy of this order to the trial Court and
the concerned prison forthwith.
Pending IAs, if any, stood disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
PKN,AKC,KSR
